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Pourvoi c/ CA de Poitiers du 23 novembre 2020

Pourvoi c/ arrêt CA de Paris (extradition) du 25 novembre 2020

Pourvoi c/ décision CA de Paris du 15 décembre 2020

Tribunal judiciaire d'Épinal, jugement du 11 février 2021

Tribunal judiciaire de Pontoise, 5 mars 2021

Pourvoi c/ ordonnance du Premier président de la CA de Limoges rendue le 25 novembre 2020

Pourvoi c/ Cour d'appel de Metz, 26 juin 2020

Tribunal de police de Tarbes, 4 mars 2021

Avis rendu par le Conseil de l'ordre des avocats au Conseil d'État et à la Cour de cassation du 19 novembre 2020

Pourvoi c/ jugement du Tribunal judiciaire de Bobigny rendu le 26 janvier 2021

Tribunal judiciaire de Narbonne, 18 février 2021

Pourvoi c/ chambre de l'instruction de la CA de Lyon du 27 octobre 2020

Pourvoi c/ chambre d'instruction de la CA de Toulouse du 22 janvier 2021

Pourvoi c/ déc. chambre instruction de la Cour d'appel de Paris du 21 janvier 2021

Chambre de l'instruction

Allemagne / Pologne
Énergie
Selon l’avocat général Campos Sánchez-Bordona, le principe de solidarité énergétique peut être utilisé pour contrôler la légalité des actes des institutions de l’Union dans le domaine de l’énergie

In two judgments delivered on 10 December 2020, the French Supreme Court for civil and criminal matters (Cour de cassation) extended the reach of French attachments to any claims owed to third parties established in France, irrespective of whether the third party had its headquarters in France or abroad, and irrespective of the situs of the debt.

In the most spectacular case, the Cour de cassation allowed the attachment of rents owed by an American law firm to the United States of America with respect to a building in Paris, because the American law firm was a partnership with an office in Paris.

In both cases, the creditors were represented by French boutique law firm Archipel, which has engineered the most innovative enforcement strategies in recent years in France (in particular against foreign states such as Congo).

Background

The creditor in the first case was an employee of the U.S. embassy in Paris. After he was dismissed, he sued the U.S. in French courts. The U.S. raised a number of procedural arguments, including that it had not been lawfully served, and that the personal immunity of the Ambassador prevented that he be made a joint party to the proceedings (in addition to the U.S.). In 2009, the French court rejected the arguments of the defendants, held that the dismissal was unfair and ordered the U.S. to pay over € 130,000. The U.S. refused to pay. The plaintiff had passed away in the meantime, so his heirs went back to court to obtain an order that the U.S. complies with the judgment under penalty of € 1,000 a day. The U.S. argued that the judgment had not been properly served and still refused to pay (was that to Make America Great Again?). The total sum reached € 734,000.

The U.S. owns a building in Paris that it has been renting to Jones Day for its Paris office. I understand that Jones Day is a U.S. partnership headquartered in Cleveland, Ohio. The Paris office does not have an autonomous legal personality.

The French lawyers of the employee served Jones Day in Paris with an attachment order over the rents owed by the firm to the United States.

Traditional Paradigm: Situs of the Debt

Although it was never clearly formulated by the Cour de cassation, it was widely admitted in France that the focus of the principle of the territoriality of enforcement was the location of the relevant asset. As far as debts are concerned, this meant the situs of the debt. The understanding was thus that French enforcement authorities could attach debts located in France. As debts are intangibles with no genuine location, a rule was designed, which is not uncommon: debts were deemed to be located at the domicile of the debtor. For legal persons with branches in several countries, this meant at their headquarters.

On this basis, the Cour de cassation allowed French attachement orders to reach funds held in bank accounts in foreign banches of French banks. Although the court had not expressly said so, analysts agreed that the rationale for this outcome was that the debts of the foreign branchs were situated in France, at the headquarters of the French bank.

In this case, the debt was owed by an entity headquartered in the U.S. Under the traditional paradgim, it was thus situated in the U.S., and thus beyond reach of French enforcement measures. On this ground, the lower courts set aside the attachments. The employee appealed to the Cour de cassation, and his lawyers clearly argued that a shift in paradigm was necessary.

New Paradigm: Establishment of the Third Party

The Cour de cassation allowed the appeal and confirmed the validity of the attachment of the rents owed by Jones Day to the United States.

It held that French enforcement officers could reach any third party established in France, and that, for that purpose, a third party was established in France either if it had its seat in France or if it had there any “entity” with the power to pay the debt of the debtor.

The court then made clear that whether the situs of the debt  might have been in the U.S. was irrelevant.

These rules were deduced from a redefinition of the rule of territoriality of enforcement, that the court linked to the principle of sovereignty and independence of states, ie its view of public international law. The court held the said rule meant that constraint could only be exercised on a third party established in France. It was thus concerned with persons rather than assets.

Assessment

The shift from a paradigm focused on the location of intangible assets to a paradigm focused on the location of third parties is convincing. Intangible assets in general, and debts in particular, have no physical existence, and are thus located nowhere. The location of debts at the domicile of debtors is artificial, and it is unreasonable to determine the jurisdiction of enforcement authorities on such a factor.

While the shift in paradigm is convincing, the details of the new regime will have to be determined. The criteria for determining the establishment in France of third parties were not fully debatted before the court. It is not clear what the court meant by its reference to entities with the power to pay the debt of the debtor. I will report later on the second case in which a bank established in France was found not to be such an entity.

En cas d’appel interjeté par le procureur de la République à l’encontre de l’ordonnance du juge des libertés et de la détention rejetant sa requête aux fins de saisie de bien ou droit incorporel, le propriétaire du bien ou du droit saisi et, s’ils sont connus, les tiers ayant des droits sur ce bien ou sur ce droit, qui doivent être convoqués devant la chambre de l’instruction, peuvent prétendre à la mise à disposition des pièces de la procédure se rapportant à la saisie.

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